Understanding Title Vii Exemptions: Employment Law Excuses

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination based on race, colour, religion, sex, and national origin. The law also applies to the federal government, employment agencies, and labour organisations. However, it does not cover independent contractors or US citizens working abroad for non-US-controlled businesses.

Title VII is enforced by the Equal Employment Opportunity Commission (EEOC), which investigates formal complaints and has the power to issue fines and lay criminal charges. The EEOC also allows employees to sue their employer if no resolution is possible through them.

Title VII does not apply to every employer. It typically covers private and public sector employers with 15 or more employees.

There are several potential legal claims employees may pursue under Title VII, including disparate treatment, disparate impact, quid pro quo sexual harassment, retaliation, and negligence.

Bona fide occupational qualification (BFOQ)

The BFOQ is an exception to Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, colour, religion, sex, and national origin. The BFOQ recognises that in some rare instances, a person's sex, religion, or national origin may be reasonably necessary to carry out a particular job function in the normal operation of an employer's business.

To be considered a BFOQ, the following criteria must be met:

• The attribute must be directly related to the business's function and essential to the role.
• The attribute must be supported by reliable evidence and validated through widely accepted research consensus.
• The employer must prove that proving an exception to the recognised consensus would cause undue hardship.
• The BFOQ must be listed in the employment advertisement.
• Mandatory retirement ages for bus drivers and airline pilots for safety reasons.
• A religious school requiring its faculty to be members of that denomination.
• Fire departments requiring firefighters to be able to lift a certain weight to carry people out of burning buildings.
• Actors or models needing to show authenticity in a role.

It is important to note that race can never be considered a BFOQ. Additionally, mere customer preference is not enough to justify a BFOQ defence.

Reasonable accommodation

However, the employer has the right to control speech that may impede the provision of services, especially in a mental health setting. An employer may also have a defense to a Title VII accommodation claim if the proposed accommodation would require them to display a religious message that could be misconstrued as their own.

In the case of union dues, Title VII requires employers and unions to accommodate an employee who holds religious objections to joining or financially supporting a union. This can often be done by allowing the equivalent of union dues or agency fees to be paid to a charity agreeable to the employee, the union, and the employer.

Ultimately, the reasonableness of an employer's attempt at accommodation is a fact-specific determination and must be evaluated on a case-by-case basis.

Adverse employment action

To establish a case of adverse employment action, an employee must show that they:

• Are a member of a protected class,
• Suffered an adverse employment action,
• Met their employer's legitimate expectations at the time of the adverse employment action, and
• Were treated differently from similarly situated employees outside their protected class.

If these elements are met, the employer must articulate a non-discriminatory reason for the adverse employment action. If an employer does so, the employee has to prove by a preponderance of the evidence that the employer's articulated reason is a mere pretext/excuse for discrimination.

Hostile work environment

A hostile work environment is a form of harassment prohibited by Title VII of the Civil Rights Act of 1964. It is characterised by severe or pervasive harassment that creates an abusive environment, as judged by both an objective and subjective standard. This means that a reasonable person would find the conduct abusive, and the employee in question also found it abusive.

For a hostile work environment to be unlawful, the conduct must be based on an employee's protected characteristics, such as race, colour, religion, sex, national origin, age, or disability. It must also be attributable to the employer, and severe or pervasive enough to alter the conditions of employment.

Examples of offensive conduct that may contribute to a hostile work environment include offensive jokes, slurs, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures, and interference with work performance. The harasser can be a supervisor, a co-worker, or even a non-employee.

To establish a hostile work environment claim, an employee must show that the conduct was unwelcome and that it was based on their protected class status. They must also demonstrate that the conduct was severe or pervasive enough to create an abusive work environment.

Employers can avoid liability for hostile work environments by taking steps to prevent and correct harassing behaviour. This includes establishing an effective complaint process, providing anti-harassment training, and taking immediate action when an employee complains.

Employees should inform the harasser that the conduct is unwelcome and must stop, and report the harassment to management at an early stage.

Retaliation

The definition of "adverse employment action" has been expanded by the United States Supreme Court to include any action that "would have been materially adverse to a reasonable employee or job applicant" and could "dissuade a reasonable worker from making or supporting a charge of discrimination". This includes actions beyond the workplace, such as vandalism, refusing to provide post-employment information, or continually calling or driving by an employee's home.

The Equal Employment Opportunity Commission (EEOC) considers the following to be examples of retaliation:

• Reprimanding an employee or giving a lower performance evaluation than deserved
• Transferring an employee to a less desirable position
• Engaging in verbal or physical abuse
• Threatening to make, or actually making, reports to authorities (e.g. reporting immigration status or contacting the police)
• Spreading false rumors or treating a family member negatively (e.g. cancelling a contract with an employee's spouse)
• Making an employee's work more difficult (e.g. purposefully changing a work schedule to conflict with family responsibilities)

It is important to note that engaging in Equal Employment Opportunity (EEO) activity does not shield an employee from all discipline or discharge. Employers are free to discipline or terminate workers if non-retaliatory and non-discriminatory reasons are present. However, employers are not allowed to do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination.

Frequently asked questions